Feds Say ‘Dragnet’ Surveillance Lawsuit Threatens Security

SAN FRANCISCO – Citing the state secrets privilege and other legal claims, the Obama administration urged a federal judge here Wednesday to dismiss a lawsuit claiming Americans’ electronic communications are being siphoned to the National Security Agency without warrants.

During a two-hour hearing, a top-ranking Justice Department litigator declined to confirm or deny the existence of what the Electronic Frontier Foundation described in its lawsuit as ongoing “dragnet” surveillance, which the EFF hopes the lawsuit will stop.

“President Obama inherited a number of surveillance activities,” Anthony Coppolino, special litigation counsel for the administration, told U.S. District Judge Vaughn Walker. “There remain rare occasions where the privilege has to be invoked to prevent harm to national security.”

Coppolino added that the government is immune from lawsuits regarding the conduct at issue. Surveillance, he said, “is the crown jewel of the National Security Agency.”

Walker did not tip his hat on whether he would toss the case. But history suggests he may not. Still, even if the case survives its initial stage, the EFF has a long road to travel before actually proving its case.

The lawsuit before Walker, although having its first hearing Wednesday, has a tortured procedural history.

It began in 2006, originally targeting the nation’s telecommunication companies, shortly after President George W. Bush publicly acknowledged the so-called Terror Surveillance Program. Under that plan, adopted following the 2001 terror attacks, Bush conceded that the government was eavesdropping on Americans’ electronic communications without warrants or congressional authorization.

The admitted eavesdropping concerned Americans on U.S. soil communicating with somebody overseas the government linked to terrorism. A government report on Friday suggested the spying was larger in scope, but provided no details.

“What the government is arguing is that the president decides what is legal or not,” EFF legal director Cindy Cohn told Judge Walker at the end of the hearing.

The EFF’s case now focuses on the government instead of the telecoms. Last summer, Congress adopted legislation immunizing the telecommunication companies from lawsuits accusing them of being complicit in Bush’s Terror Surveillance Program.

Congress, including Barack Obama when he was an Illinois senator, adopted the immunity legislation after Walker ruled the EFF’s case against the telecommunication companies could proceed, despite the government’s assertion of the state secrets privilege. (Judges routinely dismiss cases when the government declares the case could harm national security by exposing national secrets.)

Both EFF lawsuits are based on a former AT&T technician’s documentation of a secret room in AT&T’s Folsom Street central office in San Francisco that allegedly siphoned internet backbone traffic to the National Security Agency. Similar rooms, technician Mark Klein said, are operating at other AT&T facilities around the country.

“What has changed between now and 2006 that suggests I should take a different view of this argument?” Walker asked Coppolino about the government’s state secrets assertion.

Coppolino said Walker should end the case now before it gets to the discovery stage, when the EFF would demand the government turn over classified information.

“The discovery they seek goes right to the heart of the state secrets privilege,” Coppolino responded. “They want to know, is the government engaged in a content dragnet, a communications dragnet.”

Walker never ordered the government to produce classified data in the original EFF case. He dismissed the lawsuit after Congress immunized the telecommunication companies, but before the discovery stage.

And in an unrelated spy case, Walker has refused to admit as evidence classified documents that purportedly show two American lawyers for a Saudi charity had their telecommunications siphoned without warrants. The government declared those documents a state secret, but erroneously mailed them to the lawyers.

Instead, Walker ordered that case to be litigated on evidence from the public record, excluding the classified documents. That case, concerning the Al-Haramain Islamic Foundation attorneys, is pending.

If Walker takes the same position in the EFF case as he did in Al-Haramain, Cohn said in a brief interview after the hearing that the odds the EFF would prevail are “darn close.”